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2011 DIGILAW 1914 (RAJ)

State of Rajasthan v. Bhanwar Lal Verma

2011-09-06

ARUN MISHRA, M.TRIVEDI

body2011
Hon'ble TRIVEDI, J.—The appellants (original-respondents) have challenged the legality and validity of the common order dated 1.9.2009 passed by the learned Single Judge in S.B. Civil Writ Petitions No. 5390/1995 and 557/1997 allowing the said petitions, by setting aside the order changing the nomenclature of the post of Mistry to Biogas Mistry, and the orders of recoveries issued against the respondents (original-petitioners). 2. The short facts giving rise to the present appeals are that the present respondents (original-petitioners) were appointed initially on the post of Mistry purely on temporary basis, under the Bio Gas Scheme which was sponsored by the Central Government. The said project was funded by the Central Government and the petitioners were appointed in the pay scale of Rs. 440-770 by the different orders issued in different years, which were extended from time to time. The said pay scale of Rs. 440-770 was also revised to Rs. 610-1090 in the year 1983 and again revised in the year 1986 in the pay scale of 1120-2050. The said scale was again revised under the Rajasthan Civil Services (Revised Pay Scale) Rules, 1989. However, there being anomaly in the Pay Scales, the matter was referred to the anomaly committee for necessary rectification. Accordingly, the amendment in the Pay Scale Rules, 1989 was made by way of amendment Rules of 1992. As per the said amended Rules 1992, the Pay Scale of Mistry was made as Rs. 1400-2600 and the petitioners were also given the benefit of fixation of revised pay scale of Misry. It further appears that since the said Biogas Scheme had come to an end, the petitioners were declared surplus and sent to GAD for absorption. They were absorbed also and they had also availed the benefit of selection grade on completion of their nine years of service. Thereafter, though there was no post of Mistry Grade-I existing, the appellants (original respondents) issued an order dated 9.11.1995 changing the nomenclature of the post of Mistry Grade-I to Biogas Mistry and further issued order dated 10.11.1995, refixing the pay scale of the petitioners in the pay scale of Rs. 1200-2050 with retrospective effect. The appellants also issued recoveries orders against the respondents, who were given the benefit of pay scale of Rs. 1400-2600. 1200-2050 with retrospective effect. The appellants also issued recoveries orders against the respondents, who were given the benefit of pay scale of Rs. 1400-2600. The said action of the appellants (original respondents) in changing the nomenclature vide order dated 9.11.1995 and in refixing the pay scale of the petitioners in the pay scale of 1200-2050 with retrospective effect, and in passing the orders of recoveries against the petitioners were challenged in the above mentioned writ petitions. 3. The said petitions were contested by the appellants by filing the reply contending inter alia that initially the appointments were given to the petitioners only on temporary basis under Biogas Scheme sponsored by the Central Government and that the said petitioners did not possess the qualification for the post of Mistry as prescribed in Rajasthan Subordinate Service Rules. It was also contended that the State Government was not under any obligation to give the regular pay scale of Mistry Gr.I to the petitioners, more particularly when their appointments were not on substantive posts and that there was no illegality committed by the respondents in changing the nomenclature for the post of Mistry and in placing the petitioners in the pay scale of 1200-2050 on the post of Bio Gas Mistry. 4. The learned Single Judge considering the submissions made by learned counsel for the parties, allowed the said petitions as stated hereinabove and being aggrieved of the said order the appellants (original-respondents) have preferred these present intra Court appeals before this Court. 5. It has been submitted by learned AAG Mr. N.A. Naqvi for the appellants that the petitioners did not have any vested right to get the pay scale of Rs. 1400-2600 of Mistry Grade-I which ws fixed for the post of Mistry Grade-I which was fixed for the post of Mistry Grade-I more particularly when their appointments were initially made temporarily under the Scheme sponsored by the Central Government. According to Mr. Naqvi, in November, 1995, the petitioners were declared surplus, the post of Mistry having been abolished under the said scheme. However, they were continued and absorbed in other departments by the appellants. Mr. Naqvi further submitted that petitioners could not be equated with the other employees working in the other departments and could not claim the pay scale of Mistry Grade-I when they were not possessing requisite qualification for the post of Mistry as prescribed in the Rules. 6. However, they were continued and absorbed in other departments by the appellants. Mr. Naqvi further submitted that petitioners could not be equated with the other employees working in the other departments and could not claim the pay scale of Mistry Grade-I when they were not possessing requisite qualification for the post of Mistry as prescribed in the Rules. 6. Assailing the order passed by the learned Single Judge, Mr. Naqvi submitted that there being no violation of any fundamental right conferred under the Constitution of India, the impugned order allowing writ petitions is liable to be set aside. Mr. Naqvi has relied upon the judgment of Hon'ble Supreme Court in the case of Secretary, State of Karnataka and Others vs. Umadevi (3) and others (2006) 4 SCC 1 and in case of Official Liquidator vs. Dayanand and Others (2008) 10 SCC 1 , to submit that the courts should be careful in ensuring that they do not interfere unduly with the economic/ financial arrangement of the affairs of the State or its instrumentalities. Mr. Naqvi also relied upon the judgment of the Apex Court in the case of Madhya Pradesh and Others vs. Chandra Bajpai (2009) 13 SCC 635 , in case of State of West Bengal and Another vs. West Bengal Minimum wages Inspectors Association and Others (2010) 5 SCC 225 and in the case of Union of India and Others vs. Hiranmoy Sen and Others (2008) 1 SCC 630 , to buttress his submission that the principle of equal pay for equal work would not be automatically applicable to the claim based on previous equal pay. Reliance was also placed on the judgment of Apex Court in the case of Rajendra and Others vs. State of Rajasthan and Others (1999) 2 SCC 317 and in the case of S.C. Chandra and Others vs. State of Jharkhand and Others (2007) 8 SCC 279 , to submit that when the decision to abolish the post was taken by the concerned authority, no direction could be given to compel the employer to continue the post or the employee. 7. At the outset, it is required to be stated that the facts are not much in dispute inasmuch as it is not disputed that initially the respondents original petitioners were appointed on the post of Mistry, on temporary basis under the Biogas Scheme sponsored by the Central Government. 7. At the outset, it is required to be stated that the facts are not much in dispute inasmuch as it is not disputed that initially the respondents original petitioners were appointed on the post of Mistry, on temporary basis under the Biogas Scheme sponsored by the Central Government. It is also not disputed that they pay scale of Rs. 440-770 of the petitioners was revised from time to time and lastly the petitioners were getting pay scale of Rs. 1400-2600 on the said post of Mistry. The petitioners were also granted the benefit of selection grade on their completing nine years of service. It is also not disputed that all the petitioners were absorbed on the post of Mistry in different departments on the Biogas Scheme having come to an end and they having been sent to GAD for absorption. Mr. Naqvi also fairly submitted that the petitioners were getting pay scales of Rs. 1400-2600 which was the pay scale of Mistry, of course, according to him, the said benefit of pay scale of Rs. 1400-2600 was erroneously granted to the petitioners. The dispute arose as the appellants issued order dated 9.11.1995 changing the nomenclature of the post of Mistry Grade-I to Biogas Mistry and when the pay scale of petitioners for the post of Biogas Mistry was fixed at Rs. 1200-2050 as per the order dated 18.11.1995. The appellants subsequently also issued orders regarding recoveries from the salaries of the petitioners. At this juncture, it is pertinent to note that there was no post like Mistry Grade I existing prior to the said order dated 9.11.1995 and only the post of Mistry was existing and was included in the Rules. Therefore in absence of any post like Mistry Grade-I, there was no question of changing the nomenclature of the post of Mistry Grade I to Biogas Mistry. Mr. Naqvi had also fairly submitted hat the said post of Biogas Mistry was created for the first time as per the said order dated 9.11.1995 and that earlier no pay scale as such was fixed for the said post. Mr. Naqvi was also not in a position to satisfy the query of the court as how the nomenclature of post of Mistry which was included in the statutory Rules, could be changed to that of Bio-Gas Mistry by an administrative order dated 9.11.1995. Mr. Mr. Naqvi was also not in a position to satisfy the query of the court as how the nomenclature of post of Mistry which was included in the statutory Rules, could be changed to that of Bio-Gas Mistry by an administrative order dated 9.11.1995. Mr. Naqvi had also failed to point out as to how service conditions of the petitioners who were already working on the post of Mistry could be changed by an administrative order, more particularly by reducing their pay scales which would tantamount to changing their service conditions to their detriment. 8. From the impugned order passed by the learned Single Judge also, it transpires that the petitioners were being paid the pay scale which was being paid to the persons holding post of Mistry in various engineering departments and that the petitioners were also granted benefit of the Rajasthan Civil Services Revised Pay Scales (Amendment), 1992 by revising their pay scale from 1120-2050 to Rs.1400-2600. The appellants, much after the enforcement of the Revised Pay Scale Rules, 1989 with effect from 1.9.1988 and three years of the Notification of Rajasthan Civil Services (Revised Pay Scale) Rules, 1992 had sought to change the nomenclature of the petitioners from Mistry/Mistry Grade-I to Biogas Mistry and reduced their pay scale to Rs. 1200-2050. The learned Single Judge relying upon the judgment of this Court in the case of Ram Ratan Chauhan & etc. vs. State of Rajasthan, SLR 2007(5), 470 and various judgments of the Apex court observed that the right to salary or emoluments in particular pay scale is one of the conditions of the service and such a right may flow from the statutory rules framed under the proviso to Art. 309 of the Constitution and even from the executive instructions in a given case, however, as per the settled legal proposition, the vested right and the accrued right could not be withdrawn by amending the Rules retrospectively. In any case, in the instant case, the appellants had changed the nomenclature of the post of Mistry Grade-I to Bio Gas Mistry without amending the relevant Rules and only by issuing administrative order, and thus had sought to change the service conditions of the petitioners to their detriment, which was not legally permissible. In that view of the matter, we do not find any illegality or infirmity in the impugned order passed by the learned Single Judge. 9. In that view of the matter, we do not find any illegality or infirmity in the impugned order passed by the learned Single Judge. 9. There could not be any disagreement with the ratio of the judgments cited by the learned counsel Mr. Naqvi, however, none of the said judgments has any application to the facts of the present case. The learned Single Judge has neither interfered with the financial affairs of the Sate, nor has directed the appellants to make payment to the petitioners on the principle of equal pay for equal work. The learned Single Judge only set aside the arbitrary and illegal orders of the appellants in changing the nomenclature of the post of issuing an administrative order without amending the relevant Rules, and in changing service conditions of the petitioners against their interest without any justification. 10. In that view of the matter, we do not find any illegality of infirmity in the said order passed by the learned Single Judge. 11. The appeals being devoid of merits deserve to be dismissed and are accordingly dismissed.